Imagine a woman and her husband begin to argue after some late-night drinks. The husband has a history of abusing the woman and on this particular night assaults her again. The husband then takes the woman’s phone and drives off. The woman, knowing that usually what follows when her drunken husband returns is an even worse beating, gets into her car and drives to a battered women’s shelter. During that drive she is stopped by police and arrested under suspicion of violating A.R.S. § 28-1381 by driving under the influence (DUI.) Her reasoning for needing to drive despite being under the influence is logical and compelling. Surely no court would convict that woman because she had to drive away; right?

No.

Unlike some states, Arizona’s courts have stated that the necessity defense may only be used in certain types of cases. Arizona’s legislature chose to place the necessity defense statute under the justification section of Title 13. That necessity defense statute is codified in A.R.S. § 13-417(A) and provides that:

“conduct that would otherwise constitute an offense is justified if a reasonable person was compelled to engage in the proscribed conduct and the person had no reasonable alternative to avoid imminent public or private injury greater than the injury that might reasonably result from the person’s own conduct.”

Now defined, the necessity defense appears to fit squarely into the example above. The woman drove drunk out of fear that she would be gravely injured once her husband returned home. She seemingly had no reasonable alternative to avoid the driving as her phone was taken and walking to the shelter so late at night would be unreasonably dangerous. This all matches up with necessity defense’s definition. Therefore, the woman should be free and clear of the DUI charge. Well not necessarily.

There exists an entirely separate section within Title 13 that hamstrings the necessity defense. Section 13-401(B), A.R.S. which is entitled “Unavailability of justification defense; justification as defense,” states:

“[J]ustification, as defined in this chapter, is a defense in any prosecution for an offense pursuant to this title.”

This indicates that a person may use the necessity defense if they are being accused of a crime under Title 13. While it says you may use the necessity defense for crimes under Title 13, it is silent about the defense’s application to other crimes outside of Title 13. With the woman from the above example violating Title 28 under A.R.S. § 28-1381 , her ability to use the necessity defense may now be in flux. So, is a person allowed to use the necessity defense in DUI cases like the above example or are they out of luck?

Arizona Case Law Says Necessity is Not a Valid Defense in DUI Cases.

The Arizona Court of Appeals addressed the use of the necessity defense in DUI cases through the case of State v. Fell , 203 Ariz. 186 (App. 2002). That case shares nearly identical facts as the woman example at the beginning of this post. In deciding whether the necessity defense could be used outside of Title 13, the Arizona Court of Appeals reached its conclusion by using an interesting Latin rule commonly used for interpreting statutes. That Latin rule, “expressio unius est exclusion alterius” states: when expressing one or more items of a class, there is an intent to exclude all other non-expressed items of that same class. Using this rule, the court concluded that because the Arizona Legislature chose to use the words “pursuant to this title” in A.R.S. § 13-401, the legislature had intended to exclude all offenses not listed in Title 13 from having the ability to use the justification defenses listed in A.R.S. § 13-401.

Simply put, this means that unless you have been charged with a crime under Title 13 – so any crime that begins with a 13 like A.R.S. § 13-2904 – you may not use the necessity defense as a defense of your crime. And because DUI laws are governed in Title 28 of Arizona’s statutes, the court concluded that the necessity defense is impermissible for this sort of case. Thus, the woman from our example is out of luck.

This conclusion has created controversy as it is seemingly insensitive to the realities of life. It does not take mental gymnastics to think of several scenarios that would require an inebriated person to get behind the wheel of a car or face extreme consequences. With these scenarios being so easy to imagine, the frequency that these scenarios play out in real-life is far too common. Eventually the legislature or a court will become sympathetic to these occurrences and this case will be overturned. Until then, it is important that you have an attorney that knows which defenses are applicable to your case and which will get tossed out of the court room. If you are unable to secure a proper defense, a DUI conviction will likely follow. Once convicted, the penalties tend to be severe.

DUI Penalties

Considered by Mothers Against Drunk Driving to be the most strict state in the nation, Arizona has brutal DUI laws. While a traditional DUI charge occurs only when someone is driving with a blood alcohol content level of 0.08 or more; as a zero-tolerance state, Arizona law enforcement has the liberty to arrest and charge anyone they suspect is driving while impaired or intoxicated. Therefore, DUI charges are exceedingly common. Once convicted, Arizona DUI law contains harsh penalties.

A first offense for DUI with a BAC 0.08% or more is a class 1 misdemeanor. If you are found with a BAC level less than 0.08% but still impaired under A.R.S. § 28-1381(A)(1), then you also would be facing a class 1 misdemeanor. Both these DUIs carry a minimum ten days in jail (nine of those days are typically suspended.) You would be required to pay fines and fees, as well as have your driving license suspended. Next, your vehicle would require the installation of an ignition interlock device. Lastly, you may be placed on probation and be required to serve community service and receive a drug/alcohol assessment. These consequences are serious and costly. Thus, it is crucial for your case that you acquire an attorney who understands Arizona DUI law and can help you.

Let Us Help

Any DUI can result in serious and harsh consequences. Fighting a DUI requires a team of highly experienced DUI lawyers to ensure you receive the best result possible. Let Chandler Criminal Lawyer’s criminal lawyers and their knowledge of Arizona’s DUI law guide you through the process. The legal battle ahead will be led by strong representation and diligence.